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Tax, Brexit, Politics.

I write to explain a point of law that has occupied much of my twitter feed for the last couple of days. It may help to say that I am a Queen’s Counsel specialising in tax law. And I have no commercial or personal connection to Rangers (I use that name in a vernaculous rather than a legal sense) or its successor entities or (as far as I am aware) anyone connected with the club or those entities.

I have said that it is not accurate to describe Rangers’ use of EBTs as “illegal” or “unlawful”. And here is why.

You might think about the purpose of tax law as being to draw lines in the sand: fall on one side of the line and your liability will be (lower) x; fall on the other side and it will be (higher) y. Rangers entered into certain transactions which they hoped and (I understand) expected would attract liability x but which the Supreme Court decided attracted liability y. It is not “illegal” or “unlawful” to attract a higher liability than you want. And nor is it illegal or unlawful to transact to try and attract liability x but to fail and, nevertheless, to attract liability y.

We self-assess our liability to tax. Putting it another way, HMRC ask us questions in a self-assessment form, we answer them, and those answers have as their consequence that we owe a particular sum in tax. We also promise HMRC that we believe the answers are right.

If we give HMRC answers that lead to the conclusion that we owe x in tax and a court later says that our answers were wrong and we owe y in tax that does not establish, on its own, that we have behaved unlawfully or illegally. It is not unlawful or illegal to make an honest mistake.

If, in completing the self-assessment form, we gave answers that we did not believe to be right, we would have behaved unlawfully or illegally. But I am not aware of any evidence that Rangers gave answers in its self-assessment form that it did not believe to be right. And nor, so far as I am aware, is this an allegation that HMRC has advanced.

What about a situation where Rangers gave misleading answers to HMRC outside the self-assessment form? Certainly it would be very poor behaviour. And I can imagine circumstances in which this might be unlawful. But, on its own, this fact – if fact it is – does not enable the conclusion to be drawn that Rangers has broken any law.

Some in Labour believe that the EU is a trojan horse wherein neoliberal values enter and lay waste to our socialist paradise.

Never mind that the UK is to the right of the EU. Never mind that that the world has changed since the 1960s but that belief has not. Never mind that the EU is a safeguard against the values of the Hard Right who fought and funded Brexit. Never mind that under the microscope of evidence the belief shrivels and dies.

Nevertheless. For that belief, Labour’s leadership will sacrifice the prospect of remaining in the EU, the opportunity to deliver a better Brexit in the Single Market, and the wishes of Labour’s membership.

And it does so believing that it will have no price to pay at the ballot box in 2022. Because by then Brexit will be done and you will have forgotten Labour’s betrayal.

Would you like to say to Labour, ‘I will not forget? Deliver a Brexit outside the Single Market and come what may I will not vote for you?

‘I will abstain. Or I will vote for an alternative. But in no world will I vote for you.’

It is important. The Tory Party is divided on Brexit. A Labour Party for the country – for the country and not an ideological relic – would split the Tories. Labour could deliver a better Brexit – or none at all.

Would you support a campaign? Would you publicly pledge: betray my future, deliver a Hard Brexit, and I will not vote for you?

Please vote in this poll:

I would publicly pledge: deliver Hard Brexit, Labour, and I will not vote for you (https://t.co/kmkFFxr6Pa). Please RT.

Here’s Owen Jones on why he “accepts the EU referendum result.” It’s a good piece, there is much to agree with.

But it is important to be clear on what “accepting the EU referendum result” actually means. Clearer than he is.

The result does dictate that that we leave the EU. It dictates that unless public opinion decisively turns. And that is why I have consistently said I would have voted to trigger Article 50.

But although the result was that we should leave the EU the result told us little about what that means. Theresa May took over six months to decide she wanted to leave the Single Market. And longer still to decide she wanted to leave the Customs Union. These were her choices. There are countries outside the EU but inside the Single Market and it is likely that the UK could leave the EU but remain in the Customs Union.

They are incredibly important choices for the future of our country. They were not dictated by the Referendum. They are choices made by our political leaders. If our leaders pretend they are dictates of the Referendum our leaders lie to us.

I wish Owen – writing on a day when Jeremy Corbyn pretended that leaving the EU meant we had to leave the Single Market – had not ignored these choices. What do you say to that pretence, Owen? What do you say to the choices Corbyn has made? And what do you say to the huge majority of Labour voters who disagree with them? What do you say to the majority of the electorate who would not sacrifice their economic health to restrict free movement?

There are other criticisms too. Perhaps the most important is this.

It demeans us to pretend the risks to democracy are one way. To pretend they run from ignoring the result but not from delivering it. To pretend it is without risk to democracy to promise there would be no downside to Brexit and then deliver inflation and falling real wages, weak economic growth or recession, disinvestment and prospective joblessness, weakened public finances with jeopardy to the NHS, a Hard Border in Ireland and the list goes on.

If your intention is to protect democracy you seek a path that acknowledges and limits these downsides. You do not pretend that the future of democracy involves giving the electorate what it was persuaded to vote for and giving it to them hard.

Finally, as I said above, the Referendum result is that we should have Brexit unless public opinion decisively turns. We must listen. If the electorate comes to think that what it wanted from Brexit it will not get from Brexit it must be heard.

This is the only control on the dishonest conduct of a Referendum that our politics can offer. In a General Election you kick out a Government that breaks its Manifesto promises. But if the sanctity of a Referendum result survives both the lies told to deliver it and a public coming to understand it had been misled we have no functioning democracy at all.

So we must hope that Labour delivers its Manifesto promise on Parliament having a meaningful vote on the Final Deal.

Owen was silent on this promise yesterday but to live the values his article espoused he must be vocal on it tomorrow. And Labour will not be able to deliver on that promise unless it amends Clause 1(1) of the Repeal Bill in the Autumn. Let us hope Labour, and Owen, protects democracy by fighting to deliver its Manifesto pledge.

Beleaguered regular readers will recall the Good Law Project’s ongoing High Court dispute with Uber in relation to its tax avoidance. You can see the latest briefing here.

Earlier today, I opened up a new front in that dispute. It’s important, but to understand it, you’ll need a short lesson in VAT.

Pay attention at the back.

Assume you’re registered for VAT. When you sell something for 100 you actually charge your customer 120 including VAT. Tax lawyers call the extra 20 your output tax. Now, assume that to make the thing worth 100 you have to buy stuff worth 70. Your supplier (if also registered for VAT) will also charge you an extra 20% so you’ll end up paying 84. The extra 14 is called your input tax. (Of course, for your supplier that 14 is a tax on its sales and so, for it, it is output tax).

Then, every so often, you pay to HMRC the difference between all of the 20s you’ve charged and all the 14s you’ve paid. On all the value you’ve added – hence “value added tax”.

Because the 14s reduce the amount of money you have to hand over to it, HMRC obliges you to hold good evidence that you’ve paid those 14s. They require you to hold a VAT invoice from your supplier. But they also recognise that sometimes it might be pretty clear that you’ve paid those 14s even though you don’t hold an invoice. And so they retain a discretion to allow a claim for a 14 even without an invoice.

Now, I say I took an Uber and that I am entitled to recover VAT on the cost of that journey. But I don’t have a VAT invoice because Uber won’t give me one. My claim that it must is the subject of the High Court case mentioned above.

But I can ask HMRC to exercise its discretion to allow me to claim the £1.06 of input tax I say I paid to Uber even without a VAT receipt. And earlier today I did. You can read my letter here HMRCInputTaxLetter.

Now, why is that important?

Well, if HMRC decides to allow my claim it will be accepting that I have paid £1.06 input tax to Uber and, implicitly, that it has to collect that £1.06 from Uber. And if that is true for my £1.06 it will also be so for every other £1.06 Uber has ever charged.

And if HMRC decides to refuse my claim I could have the opportunity to appeal against that rejection and contend that, contrary to its decision, I have paid input tax to Uber. And if I won that appeal the tribunal would be deciding that Uber has charged VAT and, implicitly, has to pay that VAT to HMRC. Along with all the other VAT Uber has charged.

And that appeal would be heard before the First-tier Tribunal (Tax Chamber). I would be the Appellant, HMRC would be the Respondent and Uber would be grumbling in the back of the room. And, unlike in the High Court, in the Tax Chamber the loser doesn’t have to pay the winners’ costs.

However angry we feel about apparent inaction before the Grenfell Tower disaster it is hard not to feel humbled by the response since. The streets around the Tower yesterday were filled with people donating their time – and also the result of many thousands of generous donations of clothes and household goods and food.

And the donations continue to pile up in the many crowd-funding sites.

Of the many challenges ahead, one is how to distribute those donations? How do you ensure they go to the right people? How do you match the need for speedy distribution of money to those in need with the need to ensure the money ends up in the right hands? This poses real challenges for even large organisations – but experience tells us it can be a cause of real concern to individuals whose fundraising efforts have raised, sometimes, very substantial sums of money indeed.

It also poses challenges for the crowd funding sites themselves. Whatever protocols they have in place there are reputational risks if those monies are misused.

To that end, I spoke to James Kessler QC yesterday and asked him whether he would be prepared to draft a trust deed. You might think of a trust as being a kind of strict legal guarantee that monies will only be used for the purposes of the trust.

(1) I am in discussions with one of the major crowdfunding sites which is supportive of this initiative. I hope to be able to say which site later today.

(2) If that site is able to support the initiative we may also ask it to set up a page enabling donations to be made directly to the trust.

(3) The initial trustees – for the sake of speed – will be myself and PJ Kirby QC. Although there is provision in the Deed (as is normal) for professional trustees to be paid, neither I nor PJ will take any payment.

(4) Obviously it is desirable that the Trustees include key community stakeholders. And, should the Trust be taken up we will look to appoint them as additions to or replacements for PJ and myself.

(5) If you are someone who has crowdfunded and would like the trust to administer the monies you have raised, please write to me at info@goodlawproject.org. If you do ask the trust to administer those monies we will obviously have regard to the purposes for which you raised those monies and how you would like them to be distributed. We cannot agree to be bound by your views as to how they should be distributed.

(6) We would especially like to hear from people who have experience of establishing and administering such trust funds, especially if you have immediate capacity. If your situation is such that you need to be paid, please state that too. Please contact us at info@goodlawproject.org with a short CV.

(7) If you are a crowdfunding site that would like to avail yourself of this facility to help your fundraisers please also let us know.

It is my intention that this project going forward will be hosted at http://www.goodlawproject.org. When it is ‘up’ there, I will remove it from here.

On the day the Government published its Article 50 Bill I wrote this piece setting out what seemed to be a technical flaw in the Bill.

In the following sub-paragraphs, I set the argument in its broader context. But in reading that context it will be helpful if you bear in mind the structure of Article 50, paragraph 1 of which requires a decision to withdraw in accordance with our constitutional requirements; and paragraph 2 of which requires notification of that decision:

(1) what the Bill – now of course an Act – does do is authorise the Prime Minister to notify the EU that we intend to leave the EU;

(2) what it does not do is make a decision that we should leave the EU;

(3) you search for such a decision in vain. Even if you extend your search beyond the Act. Despite what David Davis asserted in debates in Parliament, the Supreme Court was very clear that the Referendum was not legally a decision to withdraw. In private correspondence, the Brexit Secretary has pointed to facets of the broader political context but he has not pointed to any decision;

(4) the reason the Referendum was not a decision to withdraw is because, in enacting it, Parliament chose to make it advisory;

(5) the Supreme Court judgments do not demonstrate a laser-like focus on whether they are addressing the Article 50.1 limb (the decision to withdraw) or the Article 50.2 limb (the notification of that decision). The (likely) reason for this is that the Claimants decided – and eventually the Government agreed – that for the purposes of the point before the Supreme Court the difference between the two was only formal;

(6) however, the structure of Article 50 is quite clear: it is only the decision that need be made in accordance with our constitutional requirements. There are no formalities governing the notice itself – it could be made via a tweet; and

(7) remember point (6) and the Supreme Court judgments are brought into some focus. In addressing, as they do, what our constitution requires they must (primarily) be concerned with the decision rather than its notification.

This sequence of reasoning has animated a number of campaigners. Might it have as a consequence that, legally speaking, the Article 50 clock has yet to start because we have yet to decide to leave. And that what was notified to Donald Tusk was a nothing? So that Parliament would have now to choose whether we want to leave the EU?

I’ve sat apart from those discussions for various reasons. One of them was that I hadn’t understood why the Government did things in this way? Why did it not enact a decision? Why no section 1(1) of the European Union (Notification of Withdrawal) Act 2017 saying: “The United Kingdom intends to withdraw from the European Union”?

It is inconceivable to me that this omission was accidental. The short Act is drafted with some care. By way of simple illustration I spent some time with a leading Constitutional Law QC examining whether it was effective to notify a decision to withdraw the United Kingdom from Euratom before concluding that, despite initial appearances, it was.

But here’s a speculation and one – I think – that has the ring of truth.

If you were determined to leave the EU you would not want the decision to do so to be sourced in an Act of Parliament. After all, a thing that is done by MPs can be undone by MPs. But source that decision in the Referendum, source it in ‘the will of the people’, and it cannot be undone otherwise than by the people whose future will you could then choose to mute. And the fact that, legally, in the Referendum the people had not decided to leave but simply to advise Parliament, well, that would be a nuance too far for Parliament. It would lack the will or the courage or the perspicacity to seek to amend the Bill to introduce a decision to leave.

It takes no great effort for me to imagine a conversation between David Davis and James Eadie QC (First Treasury Counsel and the Government’s key legal advisor). Davis says that for his own reasons he wants the Act not to make the decision to leave the EU. Eadie responds by observing that to do so would leave the Act with a technical flaw. Davis says that, surely, no judge would dare declare the withdrawal notification a nullity. Surely?

And what does Eadie respond? Well, someone will have to go to court to find out.